Birth injury is a unique subset of medical malpractice, and lawyers need focused training to do a good job in these complicated cases
Birth injury is a unique — and high risk — subset of medical malpractice cases, and lawyers who take them on need to understand the medicine, have a grasp on how to best interact with experts and, most importantly, know the right questions to ask.
Richard Halpern, who recently joined Gluckstein Personal Injury Lawyers as senior counsel, has been practicing for more than three decades in medical malpractice with a special interest in birth injury cases. He is one of only a handful of lawyers across Canada with such focused interest in this challenging area.
“Part of my intentions with Gluckstein Lawyers is to train people to learn the field as I know it — it’s sort of a succession plan,” Halpern says. “I want to make sure that more lawyers develop the skills needed to effectively represent children and families profoundly affected by birth injury.”
The firm’s interest in supporting and expanding on Halpern’s practice in birth injury cases was why he made the move Gluckstein Lawyers. He’s determined to impart onto his colleagues the skills and knowledge he’s developed over the last three decades because “you can’t dabble in malpractice and do a good job for babies in these complicated cases — you need to know what you’re doing, and more lawyers need to be trained to do that.”
While birth injury cases aren’t common in terms of the number of babies born each year, they are significant in terms of their absolute numbers. Halpern says there are likely many children whose cases don’t get pursued because the right questions aren’t asked, or the right people aren’t retained, and while you don’t want people pursuing cases without merit it would be “a terrible tragedy for somebody to walk away” from a case that does.
“I’ve been consulted many times for second opinions and found the first lawyer missed the issues, and had the parents not come to me, they would have dropped the case that was worth multi-millions of dollars.”
Birth injury cases differ from other cases in that there is often little direct evidence of the timing and cause of the baby’s injury. Halpern says the challenge is putting together the pieces of a puzzle from the surrounding clinical data to determine when the baby got injured. This involves neuroimaging, neonatology or paediatric neurology and obstetrics, and “all these things have to essentially merge to reveal when and how these babies got hurt — not an easy thing to do.”
Even some medical experts don’t know how to approach these cases or the right questions to ask, and to put it succinctly, Halpern says, “a lot of medical literature in the field is junk.” The lawyer has to know what is reliable and what is junk science; and confidently guide a family through one of the most devastating events that can occur.
“Birth injury cases don’t happen just to the baby — they happen to the entire family,” he notes.
Brenda Agnew, former client turned client liaison with the firm, can vouch for the correctness of that statement. Agnew’s son, Maclain, has a diagnosis of cerebral palsy — one of the most common outcomes of birth injury — as a result of a condition known as kernicterus, which results from untreated jaundice. If not addressed, jaundice can become neurotoxic to a newborn brain, which happened to her now 13-year-old son while he was in the NICU. Agnew and Maclain met the team at Gluckstein Lawyers in 2009, just under two years after her son’s birth.
“I had to put my family and my son’s future in their hands, and have faith in their ability to do the right thing for us,” Agnew says, noting choosing a lawyer is a long-term relationship and especially at Gluckstein Lawyers, which is committed to full-circle client care, the lawyers become part of the family.
As a testament to this, during her time as a client Agnew regularly sent videos and photos of her son as a reminder to the team of why they do what they do, and so that they would continue to be inspired by their work. Agnew expects to invite the firm to Maclain’s high school graduation in a few years and even to his wedding one day.
“It’s a long, arduous process — it’s emotional, there’s no doubt about that,” Agnew says of her experience. “It can be very intrusive, and there’s a lot of uncertainty. You go into this thinking it’s black and white and it’s not always.”
Maclain’s case settled in the pre-trial stage and gave Agnew the funds for therapy, respite or attendant care and access to equipment, and some security for Maclain’s future. Families are burnt out financially and emotionally, she notes, and while money will never fix all things it alleviates some stressors as the family now has the funds to care for their child.
“You need to have a lawyer who knows this stuff inside and out — you’ve undertaken this huge step, you’ve found the courage to move forward with the decision to pursue a lawsuit and you really only have one shot,” she says.
Agnew joined the Gluckstein Lawyers team in a professional capacity in 2018 and helps build out the firm’s focus on birth injury cases. Organically involved in the special needs world, through her work she spends a lot of time curating content, educational materials and resources for families who are going through birth injury cases and supports the families in other ways as they move through this process. The firm “takes every opportunity” to submit abstracts, attend speaking engagements and support community organizations that help families with kids who have birth injuries, she says.
These cases are the largest personal injury cases in terms of damages because the babies often have “extraordinary care needs throughout their lifetime, especially babies expected to live into their 40s, 50s or even into their 70s,” Halpern notes.
“The first life-altering event is the baby is unexpectedly born injured,” he says. “The second life-altering event is when the family gets the compensation that allows them some relief from looking after these profoundly disabled children.”